Judge Emily Richardson (left) and Georgia Secretary of State Brad Raffensperger. (Courtesy photos)

A Fulton County Superior Court judge on Monday rejected efforts by two would-be candidates to reinstate an election for Georgia Supreme Court Justice Keith Blackwell's seat, and upheld Gov. Brian Kemp's right to appoint a replacement.

Fulton County Superior Court Judge Emily Richardson handed down two orders rejecting petitions for writs of mandamus sought by Athens attorney and former U.S. Rep. John Barrow and Beth Beskin, a partner at the Atlanta offices of Freeman Mathis & Gary, after both were prevented from qualifying to run for Blackwell's seat on May 19.

In denying the petitions, which were intended to force Secretary of State Brad Raffensperger to reinstate the election and reopen qualifying for Blackwell's seat, Richardson held the two would-be candidates for the post, which Blackwell still occupies, failed to show they had "a clear right" to compel Raffensperger to conduct an election "when there is a legal vacancy in a position that will be filled by gubernatorial appointment prior to the beginning of the term for which the election would be held."

In her order, Richardson tackled the question of what constitutes a judicial vacancy in Georgia. The would-be candidates' lawyers argued that since Georgia's Constitution was revised in 1983, there has never been a circumstance where the secretary of state canceled an election for public office that would remain occupied by the incumbent through or past the date of the election.

The judge determined that a vacancy existed for Blackwell's seat the day he submitted his resignation letter and Kemp accepted it. "Once Governor Kemp notified the secretary of state of Governor Kemp's decision to fill the seat via appointment, Secretary Raffensperger no longer was under a statutory legal duty to hold qualifications for Justice Blackwell's seat," Richardson said.

Richardson issued her order after a hearing Friday. Barrow is represented by a team of lawyers from the Pope McGlamry firm including Michael Moore, a former U.S. attorney for Georgia's Middle District, former U.S. Rep. Buddy Darden, Chuck Byrd and Trip Tomlinson, and by Cartersville attorney Lester Tate, a former president of the State Bar of Georgia. Cary Ichter of Atlanta's Ichter & Davis represents Beskin.

Tate said he is not surprised by Richardson's ruling.

"We believe the ruling is seriously flawed and should be carefully scrutinized by the appellate courts of this state, whose duty it is to protect the constitutional rights of the people," he added.

"Obviously we are disappointed with the decision," Ichter said. "We believe it is impossible to create an immediate vacancy on the court with a resignation that will not be effective for eight months. And if there is no vacancy, the governor has no power to appoint a successor."

"We are particularly disappointed for the voters of Georgia, who will be deprived of the basic constitutional right to select a justice for the highest court in the state. We very much appreciate the great speed and diligence of the trial court in delivering a decision."

"A spokeswoman for the attorney general said the decision "speaks for itself."

The secretary of state's spokesman couldn't be reached.

Richardson said that, while the petitioners "vigorously and ably" argued that the definition of a vacancy only applies when the office-holder is no longer in office and the seat is therefore unoccupied, the "plain and unambiguous language" of the statute governing vacancies in public office "establishes that a position is vacant, as a matter of Georgia law, when the office holder has resigned and that resignation has been accepted."

At the heart of the legal dispute is a provision of the state constitution that addresses the governor's right to fill judicial vacancies by appointment that are otherwise elected posts. Under that provision, an appointee's term will expire on Jan. 1 following the next general election, but only if that election takes place more than six months after the appointee takes office.

But if a general election is scheduled less than six months from the date of the governor's appointment, that appointee will not have to run in the next scheduled general election—a buffer of more than two years to secure his or her position as an incumbent.

Beskin and Barrow filed petitions seeking writs of mandamus after Gov. Brian Kemp's executive counsel notified Raffensperger on March 1 that Kemp intends to appoint Blackwell's replacement. Blackwell submitted his resignation to the governor on Feb. 26 but will remain in his seat until Nov. 18. Blackwell was scheduled to face reelection in May. His current term was scheduled to end Dec. 31.

Blackwell, Raffensperger, Kemp's executive counsel David Dove, and Vincent Russo, co-chair of the state Judicial Nominating Commission, were subpoenaed as witnesses to Friday's hearing. Blackwell and Raffensperger, both of whom were represented by Senior Assistant State Attorney General Russ Willard, submitted stipulations rather than appear. The other two appearances were postponed.

Barrow's lawyers argued that the earliest Blackwell's as yet unnamed replacement can take the justice's seat is Nov. 19—eight months after qualifying closed and six months after the May 19 election. Because of that, they contended there is no legal justification for canceling the election.

Barrow's attorneys based their arguments on a 2016 legal scrum over whether then-Gov. Nathan Deal had the right to appoint judges to fill three new seats on the Georgia Court of Appeals created by the General Assembly rather than hold elections to fill them. In an opinion written by current Chief Justice Harold Melton, the state Supreme Court determined that a judicial office was vacant when it was unoccupied and "there is no incumbent who has a lawful right to continue therein."

Blackwell stipulated last Thursday that, although the governor accepted his resignation, the justice has continued to author or participate in formulating court opinions, hear oral arguments, participate in conferences with other justices and vote on whether to hear new cases. He continues to supervise law clerks, receive a paycheck and accrue retirement benefits, and will do so for another nine months.

Willard also contended that the secretary of state has no duty to conduct elections where a vacancy will be filled by gubernatorial appointment. Willard also suggested that Barrow or Beskin had an alternate legal remedy because they could have qualified to run this year against one of two other Supreme Court justices who face reelection in May.

After filing her mandamus petition, Beskin filed to run against Justice Charles Bethel, although she was reluctant to run against an incumbent because the odds of winning are long. She said she will reconsider challenging Bethel if the election for Blackwell's seat is reinstated.